If you were a young federal district judge, what should you takeaway from the Scheindlin/Second Circuit debacle?

Narcissus by Caravaggio. Now, picture an ugly guy with a huge nose doing the same thing.

Sometimes, especially when I am not writing about poo, I fancy myself an educator. At the very least, that is the rationalization that allows me to conclude that this blog is not my own personal version of Narcissus gazing at his own reflection. So, off with the poo hat, and on with whatever the hell teacher’s put on their heads.

Pretend if you need to, but answer the following question, dear readers: If you were a young federal district judge, what should you have learned from the Scheindlin/Second Circuit dispute? Later, I may answer my own question, but, for now, I would like some help as I think about this question.

15 responses

1) No cheap shots.
2) Let your trial record speak for itself.
3) Be not afraid to rule against the government.
4) Cherish your role as a trial judge and don’t envy your colleagues at the appellate level—it’ll keep you humble.
5) Media interviews are your only opportunity to educate the public about the obscure and often privileged world of the federal judiciary—tell it like it is, but don’t comment on pending cases.

Sadly, the lesson seems to be “keep your mouth shut when off the bench – everything you say can and will be used against you in a recusal order.”

I say “sadly” because judges have a great perspective on many ills in our legal system and are authoritative voices. But then, once judges with a variety of views all start being advocates, will the district court bench become as politicized, with the consequent lack of respect, as the SCOTUS bench has become?

Now I’m just a lawt student, but I think the biggest thing is to be civil toward everyone. Do not be cross the civility line with your colleagues, whether above you or beside you. Abusing a rule will lead to bad results, no matter the purpose. Second, when attacked by someone who is not civil, be gracious in response. Assume the best, because it gives you the moral high ground and outrages others. Third, do not attack your superiors. You will deal with them far longer than you will any one plaintiff or any one type of action.

These are not just ideals. Breaking the lines of civility destroys the appearance of impartiality in public view. For the justice system to survive, its people must have some faith in it. There are ways of resolving this that could have saved both parties considerable embarrassment. And, once that line was crossed, both sides were dragged through the mud.

When you’re drawn into something like this, there’s no winner. Both side look stupid. I would put the needs of the judiciary ahead of my own personal dispute.

I’m sure others will disagree with me, but the reasons behind it are solid and real problems result from the breech of etiquette, as happened here. People (and lawyers) expect more out of the judiciary system then they do your average lawyer. The appearance of impartiality is very important, even though judges are just as human as everyone else. I’m sure that y’all have a lot of disputes and arguments. But the media expects judges to be quiet, impartial observers who rule intelligently. Breaking that illusion breaks public faith in justice, which erodes trust in the system, which then in turn results in changes to modify the system which may or may not be well-intentioned and well thought-out. I’d rather not risk change unless it is actually necessary, and judges being angry is not a good reason to change the system.

You’re no longer part of the System. You’re above the System. Over it. Beyond it. We’re “them.” We’re “they.” We are the Men in Black.

—Men In Black (Columbia, 1997)

The Fuhrerprinzip applies. “You get to play God over the lives of the little people, but never forget that we on the Court of Appeals own you.”

The closest analogue I can think of to the American court system is the German courts under Hitler. Reichchancellor SCOTUS’s word is above all written law, and “law” is what our Platonic Guardians say it is on any given day. But as der Fuhrer (Roberts) and his Council (especially, Scalia) are too busy giving speeches, writing books, and admiring themselves a la Narcissus to do their jobs, the petty tyrants of the Courts of Appeal comprise the true voice of the Party; you cross them at your peril.

To call ours a “legal” system is to do violence to the word. Bottom line? Keep your head down, and forget that stupid oath you swore. Everyone testi-lies; get over it.

If anyone objects to the Nazi comparison, bear in mind that it is actually that of one Antonin Scalia:

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept that sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.

You couldn’t make this stuff up. Barely a month beforehand, Scalia and four of his colleagues substituted their infinite wisdom for the considered determinations of Congress just a few years before, effectively dismembering the Voting Rights Act. Shelby County v. Holder, No. 12-96, 570 U.S. ___ (2013). It’s a bit like Jerry Sandusky denouncing pedophile Catholic priests—because he couldn’t abide the competition.

One is, of course, left to marvel as to how judges don’t make policy when they let states with a well-documented history of racial discrimination initiate a de facto poll tax with an invidious and discriminatory effect, but they are making it when they declare that government does not have the right to tell individual citizens that they cannot marry a person of their own gender, have an abortion when other contraceptives fail or engage in sodomy. And coming from Scalia, this is truly staggering:

“‘I believe that texts should be read to mean what they were understood to mean when they were adopted,’ [Scalia] explained.” [Ward, supra]

There is a right way—a principled way—for judges to interpret the law. One that, if adhered to faithfully, brooks no judicial mischief. But it seems next to impossible to induce a judge to follow that path when s/he really, really, really, really does not like the outcome.

Don’t comment on pending cases (including ones on appeal that could be remanded).

Don’t suggest that lawyers file additional cases and mark them “related” if they’re seeking additional relief you can’t give in a pending case. Which is a specific application of “don’t do lawyers’ jobs for them.”

If I were a young district judge, I would post a sign on the door behind the bench by which I exited the courtroom. And the sign would say “Shut Up!”

Seriously. Do a good, legal analysis. Explain it carefully on the record and then shut up! Judges seem to get in trouble when they editorialize.

And yet I am conflicted because I am not a federal judge, I’m only a pediatrician for goodness sake. And the only peek I get into the closed world of the federal judiciary comes precisely from your flaunting the absolute ban on public speech that I would set for myself.

There (obviously) must be a more moderate rule that allows blogging but avoids the perception of bias. It seems to me that informing a magazine (presumably with some pride) that the government doesn’t like you crosses the line. It made me, an uninterested non-lawyer, suspect that the judge does not come to the courtroom with a completely open mind.

After reading the second circuit’s opinion, I was convinced that the appearance of bias was there. Her out of court statements sealed it.

Rich, I guess my takeaway would be to just do your job. District courts aren’t the last word on any interesting legal issues. Frankly, it’s rate that U.S. Courts of Appeal are the last word on interesting legal issues. As a District Court you basically have to let parties make their case on the facts in a fair manner. If Judge S made a mistake, her on-the-record comments where she seemed to take on an advocate’s role were the most damning. Best, Pat.

If I were a young district court judge, I would believe that, according to the Constitution, I have a lifetime appointment. I would further believe, having read the Federalist Papers and the acts expanding the judiciary, that circuit court judges occupy no higher plane that do I. I would further believe that the independence of the federal judiciary means that a district court judge’s interpretation of the law is not subordinated to a circuit judge’s interpretation (unless, of course, there is a circuit panel that has announced the law). Then I would pray that I was not appointed to serve on a district court within the Second Circuit.

Whether or not one agrees with Judge Schendlin, the panel’s decisions in this matter are, in my humble opinion, outrageous and highly detrimental to the core function of an allegedly independent judiciary as defined in Marbury v. Madison. As a trial lawyer, I spend many uncomfortable hours with clients, especially the “Citizen Accused,” asserting that the rule of law is not personal, or determined by personalities. The Second Circuit panel’s decision has significantly undermined my ability to make this assertion with a straight face. Thank goodness I practice in the 4th Circuit.

What you are saying sounds reasonable, but it essentially boils down to the idea that the judge must maintain impartiality/civility/decorum/a poker face even when a grave injustice is being done. That is not how a person with a moral and ethical compass should behave in the face of a wrong or injustice. To some (myself included, obviously), a judge maintaining her poker face while sentencing the poor black defendant to life for a nonviolent drug crime when she knows that a grave injustice is being carried out is the epitome of evil (“Evil triumphs when good men do nothing…”).

How can you ever trust a “justice system” that is too afraid to call a spade a spade? How can you ever trust someone to be impartial when they do everything in their power to obscure their personal biases or opinions? Isn’t disclosure the first step when it comes to the appearance of impartiality?

The person who pretends to “only call balls and strikes” is infinitely more dangerous to democracy and the rule of law than the person who is forthright and acknowledges that each individual brings their own perspective (i.e. reason, experience, and common sense). No person with a moral and/or ethical backbone would allow themselves to be held prisoner by words written on a piece of paper.

This may sound like I’m criticizing you or your view, but that is not my intent. I disagree, of course, but I just wanted to point out a view that many people I interact with share which I don’t feel anyone has presented here.